Yours truly just returned from a nice, albeit short, ski vacation in Park City, Utah.  Of course, I couldn’t make it through the whole trip without coming across some blog material.  Anyone who has ever been skiing out west knows that it’s big business (both literally and figuratively). The ski resorts invest millions upon millions of dollars in chair lifts, grooming equipment, dinning facilities, et cetera, all in an effort to attract thousands of skiers at daily prices of around $100 per person.  As such, it was a little surprising to learn that Park City Mountain Resort (PCMR), one of most popular ski resorts in the United States, doesn’t even own the land that its uber expensive equipment sits upon.  It was even more surprising to discover who actually owns the land.  The land is owned by Talisker Land Holdings (Talisker).  Talisker is the company that runs The Canyons, which is PCMR’s next door neighbor and one of its biggest competitors.  So, it was not surprising to then find out that they two were in a battle royal lease dispute.

Parents who haven’t learned to work the parental control features on their iPhones and iPads may be in luck. Apple has agreed to a settlement in class action lawsuit over so-called “bait apps,” which are games that can be downloaded for free but then charge users for “game currency” like virtual goods or play money.  Of course, Apple’s iOS does have a parental control feature that allows users to restrict in-app purchases, but why go to all that trouble when you can just hand over your iPhone willy nilly to a child?

So what’s the big payday for our lucky winners? As far as class action settlements go, it’s actually a pretty decent settlement for the aggrieved parties.  For any member of the class whose kids purchased made an in-alp purchase for less than $5, Apple will issue a $5 iTunes gift card. For those between $5 and $30 in unauthorized purchases, Apple will issue a full refund in the form of a gift card.  Users whose little rascals spent more than $30 can choose to get a full cash refund.

If your kids made any unauthorized in-app purchases check your inbox in the months to come.  The settlement requires Apple to send a notification to all iTunes account holders who made in-app purchases.

The Plaintiff in the Fosamax lawsuit, In re Fosamax Products Liab. Litig., 11-4358-CV, 2013 WL 335967 (2d Cir. Jan. 30, 2013) probably thought she would easily survive summary judgment via her expert physician’s testimony.  However, her medical expert reversed himself and contradicted prior testimony from an earlier case in which he was a treater, thus creating a credibility issue for the jury. Unfortunately, the court didn’t but the “new” testimony and applied the “sham issue of fact doctrine” and disregarded it.

In this case, the Plaintiff took the drug Fosamax for a number of years and now alleges that it led to bone deterioration.  Plaintiff makes a failure to warn.  The prescriber testified early in the case as a fact witness.  His testimony revealed that when he began treating her for bone deterioration he thought that Plaintiff had stopped taking Fosamax.  However, at that time, another physician was still prescribing the drug to Plaintiff.  Defendant moved for summary judgment on the “warning claim.”  After all, how could an allegedly inadequate warning have caused Plaintiff’s injuries if the treating physician was not aware that she was on the drug?

Then things took an interesting turn. After Defendant moved for summary judgment, the prescriber was designated as Plaintiff’s expert physician.  Not surprisingly the doctor’s testimony changed once he was on the payroll.  During his expert deposition, the physician stated that he actually did know that Plaintiff was taking Fosamax when he was treating her for the bone injury.  Further, he testified that had Defendant warned him about the risks of bone degeneration, he would have recommended that Plaintiff stop taking Fosamax.

It’s interesting how a few bucks in your pocket can “refresh” your memory.   The court took note of this fact.  Accordingly, the court held that the doctor’s expert testimony was clearly contradictory to his initial testimony and could be disregarded under the sham issue of fact doctrine.  That doctrine prevents a party from defeating summary judgment by simply submitting an affidavit that contradicts the party’s own previous sworn testimony.  In this case, however, the court extended the doctrine to apply to testimony from experts.  The court held that expert testimony could be ignored “where the relevant contradictions between the first and second depositions are unequivocal and inescapable, unexplained, arouse of the motion for summary judgment was filed, and are central to the claim.”

So there you have it.  A common sense ruling and a very professional way of the court saying, “liar liar, pants on fire.”

You know a lawyer is in trouble when he’s had sex with a client and gets called before the state bar’s disciplinary committee.  You know he’s in really big trouble when the sex isn’t even the biggest ethical issue that the disciplinary committee is investigating.  That’s where a Minnesota attorney found himself after allegedly having an affair with the woman he represented in a divorce proceeding.   As if the affair wasn’t enough, he reportedly billed the women for legal services for the time spent during their sexual encounters. Yikes.

Last month, the Minnesota Supreme Court suspended attorney Thomas Lowe indefinitely for his conduct relating to an affair with a client.   In August of 2011, Lowe began representing  a woman in divorce proceedings against her husband.  Lowe himself was married at the time.   In short order, the two began a sexual affair that lasted nearly six months.  The real kicker is that Lowe was apparently billing his client for the time spent during the affair.  Lowe reportedly billed the women for legal service on the dates of their alleged sexual encounters.  The billing entries were coded as meetings or drafting memoranda.

In fairness, there’s no ABA billing code to properly cover this kind of thing.

Things took a serious turn after he terminated the affair and withdrew as her attorney.   Lowe’s client, who had a history of mental health issues, attempted to take her own life when he ended the affair.   She was then hospitalized, at which she disclosed the affair.

Eventually, the information found its way to the Office of Lawyers Professional Responsibility  Of course, Lowe initially denied much of the allegations.   He later changed his stance to “unconditionally” admit the allegations.   The indefinite suspension by the Minnesota Supreme Court was accompanied by an order that he would not have a chance for reinstatement for at least 15 months.

Lowe’s disciplinary records reveal that in 1997 he was reportedly placed on probation for an offense involving cocaine.   But wasn’t just that he used or possessed cocaine.  He allegedly bought the cocaine from a client.  All we can say is, wow!

These days, guns and school safety are the biggest hot button topics around.   No one wants innocent children being harmed, whether it be by a crazed gunman or some other student who decided to bring a parent”s pistol to school.  But, at some point, we must remember that we can’t abandon common sense in the name of safety.  That advice goes particularly to a Colorado elementary school that suspended a second grader who was exercising his imagination during recess by pretending to stop imaginary bad guys with an imaginary weapon.

The seven year-old boy was playing a game he made up called “rescue the world” at Loveland, Colorado’s Mary Blair Elementary.  During the course of this game, the boy threw an imaginary grenade into a box where his imaginary evil forces were hiding.   There were no threats to other students.  There was no real weapon or dangerous object involved.  Just a boy pretending to be a hero.

So, why exactly, was the boy suspended?  Apparently, the school has a list of “absolute” safety rules that result in automatic suspension if broken.  The list proscribes fighting and weapons, which makes perfect sense.  The list also bans “imaginary” fighting or weapons.  So we’ve got a school that can suspend kids for the strict liability crime of using their imagination.

It might be time for everyone to step back and take a deep breath.

As we’ve noted in the past (see, e.g., the Fruit Rollups Lawsuit), there’s seems to be a whole niche of the law now devoted to lawsuits over false claims and advertising relating to food.  Well add a couple more lawsuits to the list.  Lawsuits in New Jersey and Illinois are now challenging Subway’s “footlong” sandwich claims.   Plaintiffs have alleged that the Subway “footlong” sandwiches they purchased really measured in at just under 12 inches, and for that egregious injury, they have chosen to go to court.  Oh, the humanity!

Nguyen Buren, the Plaintiff in the Illinois lawsuit, alleges that he visited a Subway location in mid-January of this year and purchased a “footlong” sub sandwich that measured only 11 inches.  Notably, Mr. Buren’s complaint (which is on available on PACER – Buren v. Doctor’s Assocs., Inc., No. 13-498 (U.S. Dist. Ct., N.D. Ill., filed January 22, 2013)) alleges that he was deceived on that single occasion in January.  He filed the suit against Subway’s parent company, claiming a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.”

Mr. Buren’s attorney equated the injury to buying a dozen donuts and finding only 11.  But that’s not quite the case.  The number of donuts is different from the size of the donuts.   As a recent Forbes article noted, baking bread is not an exact science.  As bread is baked, it rises and grows, but the growth is not  the same on every occasion.  The way bread dough grows depends on a number of factors, such as temperature, humidity, and cooking time.  Remember that we are talking about bread, not airplane parts.

You know what I’d do if I ordered a dozen donuts and got 11 donuts, or ordered a footlong sandwich and got 11 inches ?  I would go back and ask for a refund or a remedy of the situation.  Alternatively, I might stop eating at that establishment.   You’re buying a meal, not a compact car.  There’s no indication that Mr. Buren ever asked Subway to remedy his sandwich or asked for a refund.  But why go to such extremes when you can simply file a lawsuit over a sandwich short by one inch?

Given the obesity problem in this country, Subway would probably be doing us all a favor by giving us a little less sandwich.  I mean, who really needs a to be eating a foot long sandwich?   Nevertheless, Subway has pledged to remedy the situation.   According to a spokesperson, Subway will “redouble [its] effort to ensure consistency and correct length in every sandwich [it] serves.”  Next time you go to Subway, just remember to take your tape measure to be sure.  Good grief.

An attorney for a California amusement park company has called the company’s recent win in a bumper car lawsuit a “victory for anyone who likes fun and risk activities.”  The case involved a head on collision in bumper cars between two amusement park patrons – one of the patrons ended up with a broken wrist.  Of course, low speed collisions are the whole point of the ride.

The California Supreme Court says riders can’t sue over injuries stemming from the inherent nature of the attraction.

The lawsuit was filed by a San Jose, California doctor, Smriti Nalwa, who fractured her wrist while riding in a bumper car with her 9-year-old son. The injury occurred when she braced herself for a head-on collision with another car by placing her arm on the dashboard. Dr. Nalwa alleged that amusement park, Great America, failed to direct its employees to ask patrons to avoid head on collisions. To the joy of kids and kids at heart throughout the state, the court was not buying what the good doctor was selling. The court found that Dr Nalwa’s injury was caused by a collision that was a normal part of the ride and that she had assumed the risk by participating in the ride. Justice Kathryn Mickle Werdegar held:

A small degree of risk inevitably accompanies the thrill of speeding through curves and loops, defying gravity or, in bumper cars, engaging in the mock violence of low-speed collisions. Those who voluntarily join in these activities also voluntarily take on their minor inherent risks.

Perhaps California gets an unfair legal rap?  But then you consider the fact that there actually was a dissenting opinion. Justice Joyce L. Kennard’s dissent complains that the decision makes poor trial judges face “the unenviable task of determining the risks of harm that are inherent in a particular recreational activity.”  I think we could give that task to any 7 year-old and they could handle it.

Recently, the Commonwealth of Pennsylvania brought suit against the NCAA, alleging that the NCAA violated antitrust laws in levying severe sanctions against Penn State’s football program.  Notably, the University is not a party to the suit.  We have seen a few of the media’s “legal experts,” such as Andrew Napolitano (here) and Lester Munson (here), argue that the Commonwealth has no legal standing.  They believe Penn State or its student athletes are the only ones with standing to sue.  So if these brilliant legal minds have spoken, there’s nothing to see here.  Or is there?  Well, upon reading the complaint and doing about ten minutes of legal research, it’s clear that there’s actually a solid basis for the Commonwealth to assert standing to sue.

By way of background, in 2011 Penn State’s president, vice-president, and athletic director were accused of failing to report a 2001 allegation sexual abuse of a minor by a retired assistant football coach.  All three have been criminally charged and are no longer actively employed with the school, but the trials are still pending.   There were no allegations that any student athletes were involved in this matter and the head football coach followed university procedures in passing the allegations to his superiors.  Nevertheless, in July, the NCAA bypassed its normal enforcement procedures and levied massive penalties against the football team, including drastic scholarship reductions, a four year bowl ban, and a $60 million fine.  Some have declared the sanctions to be worse than the “death penalty.” The NCAA did not cite a specific NCAA rule violation as basis for the punishment, but instead simply cited general ethics standards.

Penn State receives state funding but is not considered a “state school,” in spite of its name.  So how exactly does the Commonwealth have grounds to assert standing to challenge these sanctions levied against the Penn State?  It comes from a relatively obscure doctrine called Parens Patriae.  As noted in the first paragraph of the complaint, the Commonwealth of Pennsylvania brought this suit Parens Patriae seeking an injunction under Section 16 of the Clayton Act (15 U.S.C. § 26).  Under the doctrine of Parens Patriae, a state can bring a legal action to protect its citizens from harm. The Parens Patriae doctrine is indeed applicable in antitrust actions.  An American Law Reports article (23 A.L.R. Fed. 878) on Parens Patriae and Antitrust states:

…. a parens patriae action under § 16 of the Clayton Act (15 U.S.C.A. § 26), which provides for injunctive relief against antitrust violations, can be maintained by a state on the basis of injury to the state’s general economy.

This is what the District Court held in Com. of Pa. v. Russell Stover Candies, Inc., CIV. A. 93-1972, 1993 WL 145264 (E.D. Pa. May 6, 1993) (citing State of Ga. v. Penn R. Co., 324 U.S. 439 (U.S. 1945)).

The Commonwealth’s complaint lays out the case for how its economy was injured.  In short, the complaint alleges that the Penn State football program generates hundreds of millions of dollars for the economy in central Pennsylvania.  The complaint further alleges the sanctions levied by the NCAA, which are allegedly in violation of Section 1 of the Sherman Act, will cripple the viability of the football program and will in turn impact the state’s economy through lost travel, hotels, ticket sales, dining, et cetera.

It would seem that the Commonwealth has a pretty strong basis for standing.  It shouldn’t be hard for it to secure expert affidavits to show economic harm in order to get it past a motion to dismiss for lack of standing.  Heck, the NCAA’s President, Dr. Mark Emmert, has essentially admitted that the Penn State football program is a major economic engine whose demise will have far reaching impact.  As noted in the complaint, in discussing why the NCAA imposed sanctions rather than completely shutting down the football program, Dr. Emmert stated:

The collateral damage imposed in this case would have been on people who were essentially innocent bystanders … This case had nothing to do with the marching band or the mom-and-pop hotel in State College or the guy who sells hot dogs, all of whom would have been profoundly affected by a multiyear football ban.

Of course, the sanctions imposed by the NCAA will still have the same collateral economic effects as those discussed by Dr. Emmert, but on a smaller scale.

Notably, the Commonwealth did not request monetary damages.  Courts are generally more relaxed in allowing standing for states in antitrust cases requesting injunctive relief under § 16 of the Clayton Act rather than treble damages under § 4.   Under § 4, courts are reluctant to allow standing for a general state economic injury because such indirect damages are difficult to measure.

If the Commonwealth can survive a motion to dismiss for lack of standing, this case could be very interesting.  Then again, I doubt either party wants to see this make the inside of a courtroom.   I wouldn’t be surprised to see some sort of settlement for reduced sanctions if the Commonwealth can get past motions to dismiss.   Some have already speculated that settlement is the real end game.

Boxer Juan Manual Marquez knocked out Manny Pacquiao stone cold in their recent fight.  However, even before the fight, Pacquiao’s trainer, Freddie Roach, was convinced that Marquez was on performance enhancing drugs (PEDs).  In fact, nearly two weeks before the fight, Roach allegedly said, “If [Marques's body] is natural, I will kiss his ass.”  After the fight, Marquez tested clean. He is now reportedly considering a defamation suit against Roach.  But it is not the defamation suit that has our attention.

It is the fact that Marquez appears to want specific performance on Roach’s offer.

Marquez recently stated,”Roach told me that if I would come out clean in the anti-doping tests, he would kiss my ass. The Nevada Commission has announced that [I was] negative for doping.  That means Roach has to kiss my ass and then some.”  The question: Can he get the specific performance he wants?  Of course not.

But, just for fun, let’s run through this fact pattern as if it were a law school exam question.

First, a contract is any transaction in which one or both parties make a legally enforceable promise.  The question is whether Roach’s promise to kiss Marquez’s ass is legal enforceable.  A promise is legally enforceable when it was made as part of a bargain for valid consideration or it reasonably induced the promisee to rely on the promise to his detriment. Marquez could certainly argue that he would have taken PEDs but for the offer made by Roach.  It is certainly a stretch. Moreover, Marquez already had a pre-existing duty not to use PEDs under the rules set forth by the Nevada Boxing Commission. Under the pre-existing duty rule, a promise regarding a pre-existing obligation to the other party does not constitute a legal detriment.

Second, if there was no contract, Marquez might attempt to assert promissory estoppel.  When a promisee foreseeably relies to his detriment on the promisor’s promise, even in the absence of an enforceable contract, the doctrine of promissory estoppel may be invoked to make such promise binding in order to prevent injustice.  The arguments for “detrimental reliance” would be intriguing in this case, but for the purposes of this brief analysis, we aren’t going there.

Finally, even if there were success on the aforementioned theory of recovery, would a judge really order the specific performance that Marquez appears to desire?  Specific enforcement is a remedy in the form of a court order that the breaching party render performance of the contract.  Specific performance is not available if money damages are adequate to put the aggrieved party in as good a position as he would have been had the contract been fully performed. Expectation damages are deemed to be an inadequate remedy where the subject matter is unique.  I suppose Marquez could argue that the subject matter is unique, but the judge would likely interpret Roach’s promise as being symbolic.  The embarrassment could arguably be replicated by awarding money damages.

Now, these certainly aren’t all the issues you could bring up on a word vomit law school exam.

You’d want to discuss things like unilateral contracts, acceptance by performance, inapplicability of the UCC, et cetera.  But you get the idea.